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National control over the election 
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62d Congress, ) 
1st Session. \ 



SENATE. 



Report 

No. 35. 



NATIONAL CONTROL OVER ELECTION OF SENATORS, 



May 22, 1911.— Ordered to be printed. 



Mr. Sutherland, from the Committee on the Judiciary, submitted 

the following 

VIEWS OF THE MINORITY. 



[To accompany H. J. Kes. 39.] 

The undersigned members of the Senate Committee on the Judiciary- 
dissent from the action of the committee in reporting favorably House 
joint resolution 39 on the following grounds. The resolution as reported 
is as follows: 

Resolved by the Senate and House of Representatives of the United States of America in 
Congress assembled {two-thirds of each House concurrivg therein), That in lieu of the 
first paragraph of section three of Article I of the Constitution of the United States, 
and in lieu of so much of paragraph two of the same section as relates to the filling 
of vacancies, and in lieu of all of paragraph one of section four of said Article I in so 
far as the same relates to any authority in Congress to make or alter regulations as 
to the times or manner of holding elections for Senators, the following be proposed 
as an amendment to the Constitution, which shall be valid to all intents and purposes 
as part of the Constitution when ratified by the 'legislatures of three-fourths of the 
States: 

The Senate of the United States shall be composed of two Senators from each State, 
elected by the people thereof for six years, and each Senator shall have one vote. 
The electors in each State shall have the qualifications requisite for electors of the 
most numerous branch of the State legislature. 

The times, places, and manner of holding elections for Senators shall be as pre- 
scribed in each State by the legislature thereof. 

When vacancies happen in the representation of any State in the Senate, the 
executive authority of such State shall issue writs of election to fill such vacancies: 
Provided, That the legislature of any State may empower the executive thereof to 
make temporary appointments until the people fill the vacancies by election as the 
legislature may direct. 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

This contains two separate and distinct amendments to the Consti- 
tution. The first is an amendment to section 3 of Article I so as tc 
provide for the direct election of Senators by the people. The second 
is an amendment of section 4 of Article I so as to destroj^ the power 
which the National Government now has to regulate and direct the 
time and manner of electing members of its own Senate. 

The fourth section of the first article now reads as follows: 

The times, places, and manner of holding elections for Senators and Kepresenta- 
tives, shall be prescribed in each State by the legislature thereof; but the Congress 
may at any time, by law, make or alter such regulations, except as to the places of 
choosing Senators. 

This provision requires the State legislatures in the performance of 
a dut}^ under the National Constitution to regulate the times and man- 



J r. 1 i 7-2 
2 NATIONAL CONTROL OVER ELECTION OF SENATORS. A ■- 

ner of holding elections both for Senators and Representatives, and 
gives the National Congress power at any time by law to make or 
alter such regulations. 

Under this provision it was clearl}^ contemplated that the authority 
to prescribe the times, places, and manner of holding elections for 
Representatives and Senators should primarily vest in the State legis- 
latures, but that the ultimate power to make or alter such regulations 
should forever remain in the hands of the Federal Government. It is 
manifest that the framers of the Constitution intended that this super- 
visory power on the part of Congress should exist independentl}'' of 
the way in which the Members of Congress- should be elected. Rep- 
resentatives, under the Constitution, are now elected by the people; 
Senators are elected by the various legislatures, but in both instances 
the authority of Congress to regulate the election is preserved. 

There would seem to be no doubt that if the Constitution had origi- 
nally provided for the popular election of Senators as it did for the 
election of Representatives, provision would have been made for the 
supervisory control by Congress over such elections just as it is now 
provided with respect to elections by the legislatures. 

The resolution as reported leaves the duty of the State legislatures 
and the power of Congress the same so far as Representatives are 
concerned, but, so far as Senators are concerned, it strikes out the 
words which empower the Congress at any time by law to make or 
alter the regulations, and it thus transfers from the National Congress 
to the State legislatures the power of control over the election of Sen- 
ators which the National Government now has and has had since the 
beginning of the Government, and which it has and will continue to 
have over the election of Representatives. 

The resolution also makes another change in section 4 which will 
be important in determining the construction of the instrument and 
the nature of the powers to be exercised by the State legislatures. 
The present provision is a command to the State legislatures to pre- 
scribe the times, places, and manner of holding elections, subject to 
the ultimate authority of Congress. In performing that function the 
State legislatures are discharging a duty under the Constitution of the 
United States, acting by its authority. The proposed amendment 
inserts the word "as" before the word "prescribed" and makes the 
provision read: 

The times, places, and manner of holding elections for Senators shall be as pre- 
scribed in each State by the legislature thereof. 

The command to the State legislatures is thus taken out of the Con- 
stitution, and the legislatures in making such regulations as they see 
fit to make will be performing no duty imposed upon them by the 
Constitution of the United States, but exercising, according to their 
own will and pleasure, an authority to which the Government of the 
United States will be subjected. 

As to these proposed changes in section 4 of Article I we consider: 
First. That they are unnecessary to accomplish the purpose of 
securing the direct election of Senators by the people. They do not 
aid or contribute to the direct election of Senators in any manner or 
degree. There is no reason why the ultimate authority of the National 
Government over the times and manner of electing Senators by direct, 
popular vote should not continue to be exercised just as it always has 
been exercised over the direct election of Representatives by popular 
vote. The exercise of that national power over the popular election 



NATIONAL CONTROL OVER ELECTION OF SENATORS. 6 

of Representatives meets now with no objection and, under the pro- 
posed amendment, is to continue. The proposed change from legisla- 
tive election of Senators to popular election of Senators furnishes no 
reason whatever for destroying the ultimate power of control over the 
election of Senators which the National Congress now has under the 
Constitution. ' 

Second. The abandonment of national authority by the proposed 
changes in section 4 would be a fundamental and vital change in our 
system of government and should be regarded as far more important 
than the change from legislative to direct election of Senators to 
which it has been attached in the resolution reported as if it were 
-merely incidental and subordinate. The present provision contained 
in section 4 of Article I was adopted by the f ramers of the Constitu- 
tion after full discussion and upon great consideration. The conclu- 
sion expressed in the section as adopted was an assertion of the ulti- 
mate authority of the National Government over the steps necessary 
to constitute the Government and to insure its continued exercise and 
power to act. It was one of a series of provisions which established 
definitely the distinction between the old confederation under which 
the central government was dependent upon the States and the new 
National Government, which was to contain within itself every element 
of power essential to its continued existence and effectiveness. The 
proposed change would reverse that conclusion, would change the 
theory and the nature of the relations between the National Govern- 
ment and the several States, and would leave the Nation dependent 
upon the several States and without authority of its own in respect of 
an essential part of the machinery necessary to its continued existence. 

How vital is the preservation of the supervisory power conferred 
upon Congress by section 4 of Article 1 was strongly set forth by the 
Supreme Court of the United States, through Mr. Justice Miller, deliv- 
ering the opinion in the Yarbrough case (110 U. S., 651). In that case 
the Supreme Court was passing upon the validity of the Federal elec- 
tion law of 18Y0, an act based upon the authority conferred by the 
first clause of section 4 of Article I. We quote from the opinion as 
follows: 

That a government whose essential character is republican, whose executive head 
and legislative body are both elective, whose most numerous and powerful branch 
of the legislature is elected by the people directly, has no power by appropriate 
laws to secure this election from the influence of violence, of corruption, and of 
fraud is a proposition so startling as to arrest attention and demand the gravest con- 
sideration. 

If this Government is anything more than a mere aggregation of delegated agents of 
other states and governments, each of which is superior to the General Govern- 
ment, it must have the power to protect the elections on which its existence de- 
pends from violence and corruption. 

If it has not this power it is left helpless before the two great natural and histori- 
cal enemies of all republics — open violence and insidious corruption. * * * 

It is as essential to the successful working of this Government that the great 
organisms of its executive and legislative branches should be the free choice of the 
people as that the original form of it should be so. In absolute governments, where 
the monarch is the source of all power, it is still held to be important that the exer- 
cise of that power shall be free from the influence of extraneous violence and inter- 
nal corruption. 

In a republican government, like ours, where political power is reposed in repre- 
sentatives of the entire body of the people, chosen at short intervals by popular 
election , the temptations to control these elections by violence and by corruption is a 
constant source of danger. * * * 

If the Government of the United States has within its constitutional domain no 
authority to provide against these evils, if the very sources of power may be poisoned 



4 IsTATIONAL CONTROL OVER ELECa'ION OF SENATORS. 

by corruption or controlled by violence and outrage, without legal restraint, then 
indeed is the country in danger, and its best powers, its highest purposes, the hopes 
which it inspires, and the love which enshrines it are at the mercy of the combina- 
tions of those who respect no right but brute force on the one hand and unprincipled 
corruptionists on the other. 

The Senate of the United States and the House of Representatives 
constitute one of the three great departnrepts of the Federal Govern- 
ment upon whose existence and efficiency the very life of the Nation 
depends. To say that one branch of this department shall be in the 
absolutel}'^ uncontrolled power of the various State governments is to 
deny the supremacy of the Federal Government and to that extent 
make it subordinate to the government of the several States, No 
matter what laws the State governments may pass regulating the time 
and manner of the election of Senators, no matter how profound may 
be the effect of such laws upon the efficiency of the Senate, the Federal 
Government, if this resolution shall be finally adopted, will be utterly 
powerless to protect itself. It would seem that the mere statement of 
such a contingency, however remote its happening may appear to be, 
should be sufficient to prevent its adoption. No harm can possibly 
result from a continuation of the supervisory power in the hands of 
Congress, while infinite harm might follow its destruction. 

Third. That possession by the National Government of the power 
of control over the election of its own legislative bodies is a matter of 
practical concern is shown by the fact that it has been found necessary 
to exercise that control in the past regarding both branches of the 
National Legislature. It was found necessary to regulate the election 
of Representatives by a national statute passed in 1842 and by further 
statutes in 1872, under which those elections are still held, and it was 
found necessary to regulate the legislative proceeding for the election 
of Senators by national statute in 1866. The Federal election law of 
1870 and the subsequent amendments of that law were based upon this 
provision of the Constitution. No one can tell when the further or 
renewed exercise of that power may be of the highest importance to 
the National Government. A moment's reflection will indicate that 
the greatest inconvenience and possibility of abuse might grow out of 
a variety of regulations in the difl^erent States fixing difl'erent times 
and waj^s of electing Senators in the absence of any power in the 
National Government to require a general and harmonious sj^stem 
throughout the States. 

But it is not requisite to show how the exercise of the power will be 
necessary in the future. It rests upon those who wish to destroy the 
power to show that there can be no need of it in the future. This h^s 
not been and can not be successful!}^ attempted. 

Fourth. It is not proposed to disturb the power which section 5 of 
Article I of the Constitution confers upon each House of Congress to 
"be the judge of the elections, returns and qualifications of its own mem- 
bers." That power is essential. It must rest somewhere, and under 
our system, which separates the judicial and legislative branches, it can 
rest nowhere but in the legislative bodies themselves. It has been 
exercised by the House of Representatives in respect to the popular 
election of its members in more than 400 cases during the 122 years of 
the Government's existence. The continuance of the power to regulate 
the time and manner of holding elections, which it is proposed to 
strike out from section 4 of Article I, is necessary to enable the Houses 
of Congress to perform the duty of judging of the elections and returns 



NATIONAL OONTEOL OVEK ELECTION OF SENATOES. 5 

of their members. In order to perform that duty Congress must have 
the power to require that elections shall be held at such times and in 
such manner that there shall be competent and sufficient evidence 
available to enable the judging body to get at the truth and secure a 
basis for a just judgment. 

Fifth. Possession of the power which it is proposed to strike out 
from section 4 is essential to enable the National Government to act 
effectively in case it should ever have occasion to enforce the provisions 
of the fourteenth and fifteenth amendments to the Constitution. 
The basis of any enforcement of those provisions must necessarily be 
the ascertainment and establishment of the facts in respect of the 
elections to which they may relate. The proposed amendment of 
section 4 of Article 1, if adopted, would be the latest expression of the 
sovereign will of the people of the United States, and would take 
away from the National Government authority to make those regula- 
tions regarding elections which are essential to the preservation of 
evidence regarding what actually occurs, 

There may be a difference of opinion as to whether the fourteenth 

. and fifteenth amendments should remain in the Constitution, but it 

surely can not be thought consistent with the dignity and honor of the 

United States to leave them in the Constitution and at the same time 

surrender the power which would be necessary for their enforcement. 

Sixth. The proposed amendment of section 4 depriving the United 
States of its authority over the ultimate control of the election of the 
members of its Senate has not been demanded or sought by the people 
of the United States. It has had no general discussion or considera- 
tion by them. It has had no general discussion or consideration in 
Congress. It has been proposed and reported as if it were an incident 
to another amendment to which it bears no necessary relation; as if it 
were a light and trifling matter; and no just basis exists upon which 
the Senate of the United States can^ now take the grave and serious 
step of proposing it to the State legislatures. 

Seventh. It has been contended by some that even if the provision 
of the Constitution conferring upon Congress the authority to regu- 
late the times and manner of^the election of Senators shall be elimi- 
nated, full power will still exist under other general provisions. We 
are unable to agree with this contention. Under the resolution 
express power is granted to the States to regulate this subject. The 
language is exclusive; the whole power is granted to the State, and 
nothing whatever upon this subject is reserved to Congress. To 
expressly grant exclusive power over the subject to the State govern- 
ments is equivalent to a denial of the same power to the General Gov- 
ernment, and nothing can be clearer than that such express and 
exclusive grant would foreclose the General Government from exer- 
cising the same power under any general language contained in the 
Constitution. 

It has been suggested that the right to vote for a Member of Con- 
gress is a right guaranteed by the Federal Constitution, and that 
Congress would therefore have the implied power to pass any regula- 
tion necessary to preserve this right. It is to be observed, however, 
that the power to regulate the time and manner of the election of 
Senators is to be specifically granted to the State legislatures, and it is 
di«cult to understand how an iw/plied power can exist in one agent to 
do a thing under general language where the identical power has been 
specificalfy and in exclusive terms granted to another. 



b NATIONAL CONTROL OVEE ELECTION OF SENATORS. 

The resolution now before the Senate is an exact copy of the joint 
resolution reported by Representative Tucker, of Virginia, in the 
Fifty-second Congress. Mr. Tucker, who was an able lawyer, in the 
course of his report stated: 

It is proposed to abrogate and annul the above [referring to clause 1, section 4] in 
so far as it gives to Congress any control, absolute, or remote and contingent, over 
the election of United States Senators by substituting the following language for so 
much thereof as refers to the election of Senators: "The times, places, and manner 
of holding elections for Senators shall be as^prescribed in each State by the legisla- 
ture thereof." 

Here is a plain, straightforward, candid statement of one of the 
great lawyers of the country, who knew precisely what he desired to 
accomplish, that the effect of this portion of the resolution is to annul 
clause 1 of section 4, as far as it gives Congress any control "absolute, 
or remote and contingent," and in the opinion of the minoritj^ mem- 
bers of the committee Mr. Tucker's view of the matter is entirely 
correct. If the proposed change in the language of clause 1 of sec- 
tion 4 does not have this result and does not have the effect to deprive 
Congress of its power in the premises, we are somewhat at a loss to 
understand what its proponents who take this view seek to gain. 

Eighth. The two proposed amendments ought to be considered 
separately, and each upon its own merits. The existing tendency 
toward the direct election of Senators by the people ought not to be 
made a vehicle or pretext for getting the approval of Congress to an 
entirely separate and distinct proposal, to destroy Federal control over 
elections. The people of the country ought not to be compelled to 
approve, through their legislatures, a change which they may not 
desire as the price of securing another change which they may desire. 
In order to prevent this unfair and injurious treatment of the subject, 
we recommend that the resolution be amended to read as follows: 

JOINT RESOLUTION^Proposing an amendment to the Constitution providing that Senators shall be 
elected by the people of the several States.| 

Resolved by the Senate and House of Representatives of the United States of America in 
Congress assembled {two-thirds of each House concurring therein), That in lieu of the 
first paragraph of section three of Article I of the Constitution of the United States, 
and in lieu of so much of paragraph two of the same section as relates to the filling of 
vacancies, the following be proposed as an amendment to the Constitution, which 
shall be valid to all intents and purposes as part of the Constitution when ratified by 
the legislatures of three-fourths of the States: 

" The Senate of the United States shall be composed of two Senators from each 
State, elected by the people thereof for six years; and each Senator shall have one 
vote. The electors in each State shall have the qualifications requisite for electors of 
the most numerous branch of the State legislature. 

"When vacancies happen in the representation of any State in the Senate, the 
executive authority of such State shall issue writs of election to fill such vacancies: 
Provided, That the legislature of any State may empower the executive thereof to 
make temporary appointments until the people fill the vacancies by election as the 
legislature may direct. 

"This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution." 

C. D. Clark. 
Knute Nelson. 
William P. Dillingham. 
George Sutherland. 
Frank B. Brandegee. 
Elihu Root. 
May 23, 1911. 



FURTHER VIEWS OF MESSRS. DILLINGHAM, 
BRANDEGEE, AND ROOT. 

The undersigned, who have joined in tlie foregoing- expression of views 
regarding the amendment of section 4 of Article I of the Constitution, 
wish also to put upon record an expression of their opinion that the 
amendment of section 3 of Article 1 so as to provide for the direct 
election of Senators by the people instead of by the State legislatures 
is inexpedient and unnecessary. We think that the change would be 
injurious rather than beneficial and that the abuses which have led to 
the proposal of the amendment can be obviated by a simple act of legis- 
lation, without any amendment to the Constitution. A bill for that 
purpose (S. 123) is now pending'in the Senate. 

William P. Dillingham. 
Frank B. Brandegee. 
Elihu Root. 
May 22, 1911. 

7 
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